Sunday, June 29, 2008

Haven't gotten around to much blogging lately. I'm loving making the transition to Mac and am in the "middle" of a termination of parental rights trial that's taking place on at least four separate days. We started last Monday and when we didn't get done it was continued to three separate days, last Wednesday for an hour as well as tomorrow and Wednesday afternoons.

Tomorrow is my day to cross the arresting officer. Mind you, she didn't arrest my client but my client's boyfriend, who was charged with Sexual Assault on a child, specifically my client's then five-year old daughter. Charges were later dropped against the boyfriend but the juvenile neglect case against my client continued in Juvenile Court. No criminal charges were filed against my client; the state simply filed a petition first alleging that she neglected her kids by allowing continued contact with the accused child molester. Later, the government amended the original petition, adding a "prayer" (interesting word) for the termination of my client's parental rights to all five of her kids. She has no criminal record, no prior "adjudications" in juvenile court and has held a job for the last five years. Unlike a lot of my Juvenile Court cases, there is no indication of any drug use.

So I'm up late preparing and waking up in the middle of the night worried. There is no jail time at stake but "only" my client's rights to all of her kids. I don't know if I've ever felt more pressure in a case, however, as I (1) really respect my client and what she's done with the cards she's been dealt, (2) think that the rights to your children should only be taken away as a last resort when you've either shown that you're a direct threat to their safety or that you've simply failed to comply with a long-term rehabilitative plan, and (3) feel that there's perhaps (excluding the death penalty or the legalization of torture) no more dangerous exercise of governmental power than when the state tries to take away your right to see and raise your children.

I'll write more about this case later, but my prep for it brings to mind an Omaha World Herald editorial I wrote back in January. First, a little context.

One of my favorite professors from college wrote an editorial in which he lamented the "faulty system of juvenile care" in Nebraska, and criticizing the system's and the society's "looking to science and government for solutions" to "Moral" crises.

While I agreed with a lot of his criticisms, it was this part at the end of his editorial that shocked me:

With this in mind, it is not surprising that [Dr. who previously wrote about the system] sees orphanages as the alternative to shaping the young minds and souls of disadvantaged children...

I'd never seen a clearer example of Bill Moyers' observation that in our time "the delusional is no longer marginal" than to witness a highly intelligent professor criticize reliance on government only to then condone "orphanages" as "alternatives" to shaping young children's lives in "morally disordered families.

Wouldn't that be a little more reliance on the government?

So I wrote back. Here's my favorite part of what ended up in the highly conservative paper:

Pulling kids away from their families and sticking them in government-run orphanages simply because the state deems them "morally disordered" is an extreme measure that would violate the Constitution, derail countless citizen's pursuit of happiness and also threaten the liberty interests of both parents and children. But don't worry about such a policy affecting you, even if it's implemented. Like many of those fighting the Iraq War and like most of the families embroiled in Nebraska's juvenile justice system you won't likely have to deal with its costs, unless you're poor.

But be careful as well. Remember that the rights of troubled teens, morally disordered families and the poor are also your rights. Only so long as the rights of the most vile among us are respected and enforced will the rights of the best citizens be upheld.

Understandably, I've gotten some funny looks from some juvenile court judges since the article appeared. I'd like to follow up on this later by explaining the reasons why it's the poorest who end up taking the heat for new policies but I'll leave that for another day.

If there is one image that best captures what most peoples' experience is when they first enter juvenile court it's that of Wile E. Coyote as he runs off the cliff. He doesn't fall, at first, because he hasn't yet realized that what's long been holding him up is no longer there. When he looks around, expecting the foundation to still be there, he sees that it's gone and he falls.

If there's another image that captures why he falls so hard and so quickly it's the character Ken Kesey developed in One Flew Over the Cuckoo's Nest.

Nurse Ratched rules our world in Juvenile Court.

She's so sure she's doing the right thing that she doesn't realize all the collateral damage she inflicts along the way.

And she'll happily order your frontal lobes to be cut out and chalk it up to a deep love for you. It's pretty simple, really. If you're not compliant, you're not an "acute," you're a "chronic." And if you're a chronic, we know what'll make you happy and lead to an everlasting smile on your face.

But don't worry, it likely won't affect you or your kids (at least not yet) unless you happen to be poor. And, come to think of it, Randall Patrick McMurphy looked pretty happy there at the end, didn't he?

Friday, June 20, 2008

Several years ago a rural Nebraska couple were brutally killed by shotgun blasts to the head. The investigation quickly focused on relatives, specifically cousins Matt Livers and Nick Sampson. Officials quickly theorized that the Sampson car was the getaway vehicle, but an initial search found no DNA evidence. That's when CSI commander David Kofoed was called in for one more search. He "found" a speck of blood matching one the murder victim's DNA on the vehicle's steering column.

Case closed, right? How is the defense lawyer going to demonstrate that the DNA isn't the smoking gun, in other words?

The only problem for Commander Kofoed was that shortly thereafter, two Wisconsin teens were arrested for the murder and a large amount of DNA evidence was once again found in their vehicle.

The commander of Douglas County's crime scene investigations has been put on paid suspension as authorities try to determine how he found a microscopic amount of a murder victim's blood in a car that had no connection to the 2006 double homicide.

Douglas County Sheriff Tim Dunning said Tuesday that CSI commander David Kofoed's absence since June 10 stems from allegations made in separate lawsuits brought by two Nebraska cousins formerly charged in the Cass County case.

The suspension is part of an internal investigation that should wrap up next month.

Livers and Sampson were arrested eight days after the April 17, 2006, shotgun slayings of Wayne and Sharmon Stock of Murdock, Neb. Both men spent several months in jail before prosecutors dropped the charges when DNA evidence ultimately linked the crimes to two Wisconsin teenagers.

"We need to determine how the blood in the car got in there, intentionally or accidentally," Dunning said. "Right now, I don't have an answer."

The Livers lawsuit claims the evidence was planted when the case against the cousins began to unravel.

Dunning said he has no evidence indicating misconduct by Kofoed or anyone in his office. Kofoed has a reputation for being a thorough, top-notch professional, Dunning said.

However, Dunning said the lawsuits raise serious questions about the crime lab and its ability to handle evidence.

Like the Downing Street Memo said, "the intelligence was fixed around the policy." I've often said that investigations conducted by bureaucratic agencies often flow, like water, downhill toward the easiest source: As the World Herald article stated:

Almost immediately, Cass County Sheriff's investigators and the Nebraska State Patrol theorized that a disgruntled family member killed the wealthy couple and that the Sampson car was the getaway vehicle.

In the end, authorities found no evidence linking the crimes to Sampson and Livers, except for the mysterious trace of Wayne Stock's blood found in the impounded car.

But amazingly, after a large amount of DNA was found in the Wisconsin teens' car, CSI commander Kofoed claimed that the trace amount of blood he found in the relatives' car cut in favor of their innocence.

Can you even imagine him arguing this at trial if the Wisconsin teens had not been implicated?

Kofoed could not be reached for comment Tuesday but has said previously that the microscopic amount of blood found in the Sampson car argued against the cousins being involved. Had they played a role in the slayings, he said, there would have been much more physical evidence in the car.

In past interviews, Kofoed said he searched Sampson's car a second time on his own initiative because the other outside law enforcement officials insisted it was the getaway vehicle, even though his lab's initial forensics probe indicated otherwise.

Kofoed denied planting evidence. He said he suspects that the blood particle ended there accidentally when an officer processed the crime scene and then the car during the early stages of the investigation.

Dunning said he hopes to interview all Douglas County crime lab, Nebraska State Patrol and Cass County Sheriff's Office personnel who worked on the case.

"We may never have an answer," he said. "We need to know who all was in that car because it was certainly more than just us at the crime scene."

And you know the investigation will be thorough, especially after that last CYA comment about "other people and agencies being there."

It's amazing how these investigations are characterized as rock solid, coordinated and backed up by indisputable science until the blood hits the fan. Then it's "it wasn't us, man!"

In a follow up article yesterday, the World Herald outlines Kofoed's defense and the likely outcome of the "investigation."

[Kofoed's attorney] said he expects Dunning's investigation to find that a police officer at the farmhouse inadvertently transferred blood from his clothes to the impounded vehicle.

"I don't think there has to be criminal intent by anyone in this case," [the attorney] said.

It's also probable, he said, that the victim's blood got into the car before the vehicle arrived at the crime lab's impound lot in west Omaha and was missed by the first lab technician's probe.

"One thing that most police departments don't want people to know is that DNA is very susceptible to contamination," he said.

"Generally speaking, it's very easy for police officers to contaminate a crime scene. I think it's more likely that contamination happened and that the first person who inspected the car probably just didn't do a thorough job. It is impossible in any profession to do a 100 percent great job all of the time."

That's true, but highly ironic when coming from the head of CSI after two innocent men spent months in prison due to this drop of blood.

How do you think it feels to be in prison, based on one of these drops of blood, and hear that the guy who found it now, with his own career on the line, says it could have easily gotten there by accident?

As Bob Dylan once wrote:

Rubin Carter was falsely tried.The crime was murder "one," guess who testified?Bello and Bradley and they both baldly liedAnd the newspapers, they all went along for the ride.How can the life of such a manBe in the palm of some fool's hand?To see him obviously framedCouldn't help but make me feel ashamed to live in a landWhere justice is a game.

Wednesday, June 18, 2008

George Will on John McCain's Condemnation of Boumediene v. Bush which held that Gitmo Detainees retain Habeas Corpus rights to challenge their detentions in Federal Court:

Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court -- meaning, which candidate would select the best judicial nominees -- a campaign issue

.

Finally, some conservative support for an opinion that restricts the government's second most powerful weapon, incarceration. I disagree with Will's contention that it's the worst, as would a lot of dead people or torture victims if they could speak up, but at least he's on the right track:

No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America's Constitution, which limits Congress's power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees' habeas claims?

As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, "is a separation of powers principle" involving the judicial and executive branches. The latter cannot be the only judge of its own judgment.

In Marbury v. Madison (1803), which launched and validated judicial supervision of America's democratic government, Chief Justice John Marshall asked: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.

They're also good questions for Barack Obama obviously. But Will gets credit for being one of the few mainstream media writers who frame this issue along the right lines.

I've ruined a lot of family reunions arguing with my so-called conservative relatives that they were betraying their principles by supporting a President who believed in extreme secrecy and disbelieved in the Constitution he swore to uphold.

It's nice to see someone from the right voicing their concern that while it's our government's role to protect us from terrorists, it's our Constitution's role to protect us from our government.

Overheard in the courthouse as lawyer talks to client and his girlfriend, having just walked out of the arraignment hearing: "You don't need a jury trial so just stop by and sign the jury waiver."

Granted, I don't know the facts of the case or the lawyer's motives, it just struck me as an example of a client relying on a lawyer for advice and getting advice that may be better for the lawyer than the client. In my experience, there is no better tool than a jury trial or the threat of one to persuade the prosecution to deal with your client reasonably. If they know they have an ex-colleague on the bench who will be "deciding" guilt or innocence, what's their incentive to work with you?

When I was in the Public Defender's Office, the City Prosecutors lobbied the City Council to pass an ordinance against child neglect so they could charge people with that crime. The motive, as I heard a prosecutor explain to the judge, was to deprive the defendants of jury trials since the ordinance carried up to six months in jail and thus no constitutional right to a jury trial. (Blanton v. City of North Las Vegas)

So I sent out a memo to all attorneys, advocating that, as a group, we start filing jury demands on lesser misdemeanors since Nebraska law allows a jury trial in all statutory misdemeanors carrying potential jail time if the defendant files a jury demand within 10 days of arraignment.

In other words, in Omaha, if you are charged with a class I misdemeanor (up to a year in jail) your case is set on the "jury docket" since you have a Constitutional right to a trial by jury. But you still have a statutory right to a jury trial if you ask for it.

The problem is, most lawyers don't either out of lack of knowledge, lack of motivation or even fear that, because so few attorneys ask for this right, that your client will draw the ire of the Court and see a "trial tax" imposed if a conviction is achieved.

But, for whatever reason, no one else in our office wanted to start demanding jury trials and, after some brief discussion, the idea was shot down. I asked for a "group effort" for fear that I'd be singled out for this tactic despite the fact that I could point to examples of using it to my client's advantage.

Again, I don't know if the advice this lawyer gave was good or bad since I don't know the context, but I see way too may criminal defense lawyers pushing their clients into pleas, into waiving jury trials or into racing to the prosecutor's offices.

But there is a bright side to having a lot of other lawyers who practice this way: if you're not afraid of trials, you become a rare example.

Tuesday, June 17, 2008

I thought I couldn't afford a Mac, but after two Vista-related crashes that meant sending my laptop in for manufacturer's repairs, I couldn't afford Microsoft's latest operating system. It took me awhile to decide, but I finally bought a MacBook with an Ipod touch to replace my aging pocket pc.

What sold me was not only the way I loved the MacBook I borrowed for a few weeks but also the training classes offered at the Apple store a few miles from my house. For $100 a year, I can get as many one on one training sessions as I want and can even interchange them with other family members, taking classes in everything from web design to digital photography.

There is a learning curve involved, but these things are very intuitive and just feel more useful and more dependable thus far. I've spent a lot of time selecting the right software for various functions, but there is a committed community of Mac using attorneys and even a website called Criminal defense law with an apple that I've found helpful.

It will take me a little while to convert, but it already feels worth the price. Oh yeah, my old laptop's for sale on Ebay if anybody wants it...

ABC News reports on a Justice Department report, released in early June, describing the rise of the prison culture in America: Among the highlights:

- "In the 10 largest states, prison populations increased "during 2006 at more than three times (3.2 percent) the average annual rate of growth (0.9 percent) from 2000 through 2005."

- "of the 2.3 million inmates in custody, 2.1 million were men and 208,300 were women.

- Black males represented the largest percentage (35.4 percent) of inmates held in custody, followed by white males (32.9 percent) and Hispanic males (17.9 percent)."

- The United States [not only] leads the industrialized world in incarceration [our] rate of incarceration (762 per 100,000) is five to eight times that of other highly developed countries, according to The Sentencing Project, a criminal justice think tank.

- Locking up these prisoners comes with huge economic costs. The Sentencing Project estimates that cost to be $60 billion per year for federal, state and local prison systems

- 8 states have recently contemplated releasing prisoners early.

Michigan's Governor said this recently, showing the economic realities confronting states dealing with slowing rates of economic growth and spiraling rates of incarceration rates:

"Our efforts to grow Michigan's economy and keep our state competitive are threatened by the rising costs in the Department of Corrections," Gov. Jennifer Granholm recently told The Detroit News. "We spend more on prisons than we do on higher education, and that has got to change." According the News, the Michigan Corrections Department already devours 20 cents of every tax dollar in the state's general fund and employs nearly one in every three state government workers, compared with 9 percent of the work force 25 years ago.

Sunday, June 1, 2008

This article, from last week's WaPo, shows the perhaps unintended consequences of the feds "one strike" policy of evicting the families of those convicted of drug possession from public housing.

In Nebraska, possession of less than an ounce of marijuana doesn't even entitle you to a public defender as the penalty, at least for the time being, is a $100 fine. But, such a conviction can ruin federal student loan eligibility and lead to the possessor's family being evicted from federal housing.

The article, linked to above, tells a horror story about what happens when the grandson of a "pillar of the community" gets picked up for possessing a small amount of pot.

When D.C. police allegedly found a small amount of marijuana in her grandson's bedroom last year, Frances Johnson had to take the rap with him. As a tenant in a federally subsidized apartment, she is subject to eviction for any criminal act that occurs under her roof -- whether she knows about it or not.

Within weeks of the grandson's arrest, her landlord and the D.C. Housing Authority began legal proceedings under the federal government's "one strike and you're out" policy.

That might have been the end of the story. But Johnson, 68, has taken a stand, fighting back even as she battles cancer and diabetes, her stellar reputation for community service acting as a bulwark against a law that can easily steamroll vulnerable, innocent, low-income tenants.

Several D.C. Council members, noting her volunteer work on behalf of at-risk children, wrote letters of support to the D.C. Housing Authority. The agency eventually reversed itself and yesterday recertified Johnson's eligibility for the Housing Choice Voucher Program.

Great, the system works, it's tempting to assume. Not so fast, however.

But the landlord, NDC Realty, still has two eviction lawsuits pending against her under the "one strike" law. She's far from being home safe.

The eviction episode began when Johnson's grandson, Ernest, age 24, "was arrested on the streets while gambling, pleaded guilty to marijuana possession and was sentenced to four months in jail." Ernest works in a grocery store and, according to the article, the store "is holding his job until his release next month."

But two weeks after Ernest's arrest, Johnson's apartment was raided and a "cuff link sized box" was found with pot inside. The charges were later dropped (making me wonder whether it was a warrantless search?) but "the episode was enough to trigger the "one-strike" a provision of the federal Anti-Drug Abuse Act, passed by Congress in 1988 and upheld by the U.S. Supreme Court in 2002."

Julie Becker, a lawyer with the D.C. Legal Aid Society, said the federal law permits but does not require eviction for all criminal activity. In testimony before the D.C. Council last year, she accused the D.C. Housing Authority of taking "an extremely zealous approach" to the law, citing attempts to evict an 82-year-old man based on the activity of his son and grandson as well as a woman based on a fight between her teenage granddaughter and a neighbor

"However this ends for Ms. Johnson, though," O'Donnell said, "the sins of the grandson will continue to be visited upon grandmothers like her under the one-strike law.".

Does it seems absurd that a grandmother stricken with diabetes can be evicted from federal housing even if it is shown she was unaware that her caretaker grandson had a little pot in the apartment?

It does to me, but not to the author of the opinion upholding the practice. Then Chief Justice Rehnquist, writing for the majority in HUD v. Rucker wrote that:

"It is not “absurd” that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. Such “no-fault” eviction is a common “incident of tenant responsibility under normal landlord-tenant law and practice.” ... Strict liability maximizes deterrence and eases enforcement difficulties."

About Me

I am a criminal defense lawyer in Omaha and these are my thoughts on law, politics and art. Disagree with me? Am I dead wrong? Have your own two cents to add? Leave a comment and let's discuss it. Thanks for stopping by.